People v. Westergard

• Decision Date: 30 December 1985
• Citation: 497 N.Y.S.2d 65,113 A.D.2d 640
• Parties: The PEOPLE, etc., Respondent, v. Scott W. WESTERGARD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 65

497 N.Y.S.2d 65

113 A.D.2d 640

The PEOPLE, etc., Respondent, v. Scott W. WESTERGARD, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 30, 1985.

Steiman & Steinberg, Poughkeepsie (David Steinberg, of counsel), for appellant.

William V. Grady, Dist. Atty., Poughkeepsie (Joan H. McCarthy, of counsel), for respondent.

Before LAZER, J.P., and O'CONNOR, WEINSTEIN and NIEHOFF, JJ.

WEINSTEIN, Justice.

In the early morning hours of January 24, 1983, three business establishments along Raymond Avenue in Poughkeepsie were burglarized. Certain property was removed from the three premises, including approximately $50 from a paint store, the coin box from the cigarette vending machine inside a service station as well as a money bag with a few rolls of coins and approximately $10 in coins and a soup ladle from a Chinese restaurant. Defendant was arrested in the vicinity of Raymond Avenue within one or two hours of the last burglary. He was thereafter charged in Indictment No. 30/83 with three counts of burglary in the third degree. After a jury trial, defendant was found guilty of two counts of burglary in the third degree and one count of criminal trespass in the third degree. He was thereupon sentenced to indeterminate terms of three to six years on each of the burglary counts and to a definite term of 15 days on the trespass count, all terms to be served concurrently.

The defense was predicated upon a theory of diminished capacity whereby defendant, as a result of his chronic alcoholism and drug abuse, was purportedly suffering from a disease or serious mental disorder, short of insanity, which relieved him of criminal liability for his conduct on January 24, 1983.

On appeal, defendant maintains that the trial court's ruling excluding, on the ground of irrelevancy, his parents' testimony as to his behavioral tendencies violated his constitutional right to call witnesses of his own choosing. Defendant's efforts to present evidence in furtherance of his diminished capacity defense and to have the jury properly instructed with respect to the consequences and ramifications of that evidence were allegedly thwarted by the trial court's refusal to recognize such a defense. We find defendant's contentions to be devoid of merit and vote to affirm the judgment of conviction.

The Trial

The People established their case through the testimony of the proprietors of the three burglarized premises, the taxi driver who had picked defendant up between 2:30 and 3:00 on the morning of January 24, 1983, another civilian witness and the various police personnel who had investigated the break-ins.

David Closson was notified by the police at approximately 3:15 A.M. on January 24, 1983 that his service station had been burglarized. Upon arriving at the station, Closson observed that a pane of glass in the garage's bay window had been broken and that a garbage can had apparently been thrown through it. Inside the office, the cigarette machine was torn apart and its coin box, which may have contained several hundred dollars, was missing. Closson later discovered that a money bag which contained several rolls of coins was also missing. A soup ladle which did not belong to him was found near the cigarette machine.

When Thomas Cornell arrived at his paint store on the morning of January 24, 1983, he observed a large hole in the wall dividing his business from the adjoining Fortune Cooky Restaurant. The cash register appeared to have been pried open and the $50 he always kept there was gone. Additionally, the chain securing the rear door was broken.

Upon arriving at her restaurant on January 24, 1983, Amy Lin observed pieces of metal in the cash register and on the surrounding floor. Approximately $10 in coins was missing from the register. She identified the soup ladle found in the service station as coming from her kitchen.

None of the three proprietors had ever authorized defendant to enter or remain upon his or her property or to take property therefrom.

Between 2:30 and 3:00 A.M. on the morning of January 24, 1983, John William Johnson picked up a fare (later identified as defendant) at a Poughkeepsie bus shelter and transported him to the Midas Muffler shop on Raymond Avenue. During the ride, the driver heard the clicking of a knife and saw the glint of metal in the rear view mirror. After paying the $3 fare with small change, defendant exited the cab and proceeded in the direction of the Fortune Cooky Restaurant. In Johnson's opinion, defendant was not intoxicated. He neither staggered as he walked across the street nor had any difficulty counting his coins in order to pay the fare.

Later that morning, Johnson's dispatcher received word that the police had a watch out since a robbery had been reported on Raymond Avenue. At approximately 3:45 A.M., Johnson was dispatched to pick up a fare at Cumberland Farms, a distance of several blocks from the burglarized premises. On the way there, Johnson picked up Police Officer Rolison, who concealed himself in the back seat of the cab. Upon arriving at Cumberland Farms, Johnson spotted defendant and identified him as the passenger he had picked up earlier. The officer thereupon apprehended defendant. It bears noting that Officer Rolison had previously been given a description of a man observed fleeing a service station while carrying a metal container or coin box. When the police pursued said individual, he abandoned the coin box and escaped behind some houses. Shortly thereafter, the police received word that a suspect in the vicinity had summoned a cab and Officer Rolison was dispatched to the scene.

The individual waiting for a taxi at Cumberland Farms matched the description of the man fleeing the service station with a coin box. He was also positively identified by the officer who had pursued him. At the time of his apprehension, defendant was found to be in possession of a buck knife and approximately $18 in change.

Neither the arresting officer nor the detective who interviewed defendant at the police station some two hours after his apprehension found any indication that defendant was intoxicated.

For the defense, defendant's older brother Robert testified that he had been out drinking with his brother on the evening of January 23, 1983. Robert left his brother shortly after 9:30 P.M. because he didn't like to be around defendant when he drank too much. The witness later met up with his brother at a second bar before leaving for home at 11:30 P.M. According to Robert, defendant, who abused alcohol on a daily basis, became very violent and uncontrollable when he drank. In addition to his drinking problem, defendant also used marijuana, cocaine and dried mushrooms.

Defendant claimed to have been an active alcoholic at the time of the subject incident. After moving from bar to bar and, in addition to his alcohol intake, consuming approximately one gram of dried mushrooms on the night of January 23, 1983, defendant decided to visit his girlfriend. Enroute he passed a paint store, the door of which happened to be ajar. He recalled going inside the store and taking money from the cash register before kicking a hole in the wall, entering an adjoining restaurant and removing some change from the cash register there. Defendant remembered exiting the restaurant through the back door and returning to one of the bars he had previously been in. After trying to get into two other bars which were already closed, defendant took a cab back uptown. The next thing he remembered is throwing something through the window of a service station, breaking a cigarette machine and taking the coin box. Upon hearing a car screeching up behind him, defendant ran and apparently fell asleep somewhere. Sometime thereafter, defendant summoned a cab and was placed under arrest by a police officer who sprang out of the cab which had responded to his call.

In the opinion of defendant's examining psychologist, defendant was not capable of acting purposefully with regard to a conscious objective on the evening in question. The burglaries, committed within a period of 30 to 60 minutes, did not evince the behavior of a rational person. Rather, defendant's impulsive, reckless behavior was induced by the lifting of inhibitions due to his consumption of alcohol and mushrooms.

Defense counsel attempted to establish a history of violent and irrational behavior emanating from alcohol abuse by calling defendant's parents to the stand. The court ruled that their testimony must be limited to the evening in question. Counsel responded that the proffered defense was not merely to establish defendant's intoxication on the night in question but to establish defendant's diminished capacity based upon his history of chronic alcoholism. The court stated that it did not believe that New York State has adopted the defense of diminished capacity in the same sense as California had. Accordingly, the defense's requests to charge diminished capacity were denied.

The jurors returned a verdict finding defendant guilty of two counts of burglary in the third degree with respect to the service station and restaurant and the lesser included offense of criminal trespass in the third degree with respect to the paint store.

Restrictions on Prospective Testimony

Defendant maintains on appeal that the trial court's restrictive rulings with regard to the prospective testimony of his parents violated his right to due process by effectively depriving him of the opportunity to present evidence on his own behalf. "The right to present evidence by witnesses of one's own choosing is a fundamental ingredient of due process (Jenkins v. McKeithen, 395 U.S. 411, 429, 89 S.Ct. 1843, ----, 23 L.Ed.2d 404, reh. denied 396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123) and the testimony of a defendant's witness should not be prospectively excluded unless it is offered in palpably bad faith (People v. Gilliam, 37 N.Y.2d 722, 374...